Opinion
Civil Action 2: 19-cv-1196
10-28-2021
RAHEEM WILLIS, Plaintiff, v. DENICE SMYTH, M.D., Defendant.
Cathy Bissoon, United States District Judge
REPORT AND RECOMMENDATION
Cynthia Reed Eddy Chief United States Magistrate Judge
I. Recommendation
Before the Court is a motion for summary judgment filed by Defendant Denice Smyth, M.D. (ECF No. 73). This motion has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation. For the reasons that follow, it is respectfully recommended that the motion be granted.
II. Report
A. Procedural and Factual Background
This is an action brought by Raheem Willis (“Willis”), a prisoner in the custody of the Pennsylvania Department of Corrections (“DOC”), housed at SCI-Greene.
In approximately 2013, Willis was housed at SCI-Albion and discovered multiple lipomas in his left arm and in the left pectoral region of his chest. He was not experiencing any pain or symptoms. He was told by medical personnel to keep an eye on the lipomas and to seek medical treatment if they caused him any issues or became painful. In 2018, Willis was transferred from SCI-Albion to SCI-Greene. In October of 2018, he began to feel pain and noticed that the lipomas had increased in size and number. He notified the medical department at SCI-Greene about his concern that the lumps were malignant. His request to have the lipomas removed was denied. According to Willis, the failure to remove the lipomas violated his constitutional rights against cruel and unusual punishment under the Eighth Amendment because “Plaintiff for almost 3 years has been under constant pain and has had diminished capacity in the left arm and chest regions.” Resp. at 2 (ECF No. 85).
“A lipoma is a slow-growing fatty lump that's most often situated between your skin and the underlying muscle layer.” See Mayo Clinic, Lipoma Overview, https://www.mayoclinic.org/diseases-conditions/lipoma/symptoms-causes.
In addition to suing Defendant Smyth, a former physician at SCI-Greene, Willis also sued two prison officials, Robert Gilmore, the Superintendent of SCI-Greene, and Mark Nicholson, the Corrections Health Care Administrator, at SCI-Greene (collectively, the “Corrections Defendants”), and twenty-five John and Jane Does. The Corrections Defendants' motion to dismiss was granted and those defendants were dismissed from this lawsuit on August 26, 2020 (ECF No. 47). Since that time, the case has proceeded only against Defendant Smyth.
Despite the passage of more than twenty-four months, Willis has not identified or served the Doe defendants. Any attempt to name or serve them now would be untimely under FRCP 4(m). Moreover, discovery has closed and the dispositive motion deadline has passed. “John Doe defendants who are never identified or served are never made parties to the action.” 59 Am. Jur. 2d Parties § 20. Thus, the only claims remaining in this case are against Defendant Smyth.
His claim against Defendant Smyth is focused on her failure “to gain approval for surgery.” Willis posits that the surgery may have been approved had Defendant Smyth “filed the appropriate requests for surgery.” According to Willis, Defendant Smyth “has not provided any documentation that the paperwork for removal was filed appropriately or in the correct fashion at all except her word.” Id.
After the parties had an opportunity to engage in discovery, Defendant Smyth filed the instant motion for summary judgment. In support of her motion, she filed a brief, a concise statement of material facts, and numerous documents. (ECF Nos. 74 and 75). In response, Willis filed a “Motion for Denial of Defendant's Motion for Summary Judgment” (ECF No. 85), which has been deemed his response in opposition, Defendant Smyth filed a Reply Brief (ECF No. 86), and Willis filed a Sur-Reply (ECF No. 87).
Defendant Smyth requests that Willis's Sur-Reply not be allowed or considered as Willis did not seek leave of Court before filing such a response. (ECF No. 88). Defendant Smyth is correct in that the Chambers Rules of the undersigned and Judge Bisson state that leave of court is required before the filing of such a response. However, given that Willis is proceeding pro se and may not have had access to these Chambers Rules, the undersigned will permit the Sur-Reply and will consider it in preparing this Report and Recommendation.
In addition, the factual allegations set forth in Willis's verified Complaint (ECF No. 6), to the extent they are based upon his personal knowledge, will also be considered as evidence on summary judgment. Jackson v. Armel, 2020 WL 2104748, at *5 (W.D. Pa. May 1, 2020) (citing Reese v. Sparks, 760 F.2d 64, 67 (3d Cir. 1985) (treating verified complaint as an affidavit on summary judgment motion)). See also Brooks v. Kyler, 204 F.3d 102, 108 n. 7 (3d Cir. 2000) (noting that an affidavit is “about the best that can be expected from a [pro se prisoner] at the summary judgment phase of the proceedings”); Boomer v. Lewis, 2009 WL 2900778, at *2 n.4 (M.D. Pa. Sept. 9, 2009) (“A verified complaint may be treated as an affidavit in support of or in opposition to a motion for summary judgment if the allegations are specific and based on personal knowledge.”).
Defendant Smyth's motion is ripe for disposition.
B. Standard of Review
The standard for assessing a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure is well-settled. A court should grant summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Furthermore, “summary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 250.
On a motion for summary judgment, the facts and the inferences to be drawn therefrom should be viewed in the light most favorable to the non-moving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Hudson v. Proctor & Gamble Paper Prod. Corp., 568 F.3d 100, 104 (3d Cir. 2009) (citations omitted). It is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. See Anderson, 477 U.S. at 255; Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004); Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S at 247-48. An issue is “genuine” if a reasonable jury could possibly hold in the nonmovant's favor with respect to that issue. See id. “Where the record taken as a whole could not lead a reasonable trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial'.” Matsushita, 475 U.S. at 587; Huston, 568 F.3d at 104.
This standard is somewhat relaxed with respect to pro se litigants. Where a party is representing himself pro se, the complaint is to be construed liberally. A pro se plaintiff may not, however, rely solely on his complaint to defeat a summary judgment motion. See, e.g., Anderson, 477 U.S. at 256 (“Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.”). Allegations made without any evidentiary support may be disregarded. Jones v. UPS, 214 F.3d 402, 407 (3d Cir. 2000); see also Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) (“[U]nsupported allegations . . . and pleadings are insufficient to repel summary judgment.”).
With these standards in mind, the undersigned now turns to its analysis and discussion of the motion for summary judgment.
C. Discussion and Analysis
Defendant Smyth argues that she is entitled to summary judgment because Willis has not shown that he suffers from a serious medical need or that Defendant Smyth deliberately delayed or denied him surgery based on a non-medical need. Rather, according to Defendant Smyth, the summary judgment record reflects that Willis is dissatisfied with the review board's denial of a surgical consult, believes that Defendant Smyth presented an incomplete presentation to the review board, and disagrees with the medical provider's refusal to provide him pain medication.
Willis responds that his lipomas should be removed because they are painful and he is in fear they are cancerous. And that while he has been told “that the lipomas were benign and non- cancerous, there has been no actual testing to definitely determine this and was based on a guess rather than any actual diagnostic data or tests.” Resp. at 2 (ECF No. 85). He further argues that Defendant Smyth has provided no “documentation that the paperwork for the removal was filed appropriately or in the correct fashion at all except her word.” Id. Additionally, according to Willis, without “tangible testing, ” Defendant Smyth was unable to gain approval for the surgery. All of which amounts to deliberate indifference to his serious medical needs.
Deliberate indifference to a serious medical need involves the “unnecessary and wanton infliction of pain.” Estelle v Gamble, 429 U.S. 97, 104 (1976). This indifference can manifest in an intentional refusal to provide care, delayed medical treatment for non-medical reasons, denial of prescribed medical treatment, a denial of reasonable requests for treatment that results in suffering or risk of injury, Durmer, 991 F.2d at 68, or “persistent conduct in the face of resultant pain and risk of permanent injury.” White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990). It is well-settled that “an inmate's dissatisfaction with a course of medical treatment, standing alone, does not give rise to a viable Eighth Amendment claim.” Tillery v. Noel, 2018 WL 3521212, at *5 (M.D. Pa. June 28, 2018) (collecting cases). Such complaints fail as constitutional claims because “the exercise by a doctor of his professional judgment is never deliberate indifference.” Gindraw v. Dendler, 967 F.Supp. 833, 838 (E.D. Pa. 1997) (citing Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (“[A]s long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights.”)).
When it comes to claims of deliberate indifference, there is a “critical distinction” between allegations of a delay or denial of a recognized need for medical care and allegations of inadequate medical treatment. Pearson v. Prison Health Service, 850 F.3d 526, 535 (3d Cir. 2017) (quoting United States ex rel. Walker v. Fayette Cty., 599 F.2d 573, 575 n.2 (3d Cir. 1979)). A claim alleging the delay or denial of medical treatment, which like other forms of scienter, can be proven through circumstantial evidence and witness testimony. Id. But “[w]here a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law.” Id. (citing Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976)). Furthermore, courts “disallow any attempt to second-guess the proprietary or adequacy of a particular course of treatment . . . [which] remains a question of sound professional judgment.” Inmates of Allegheny Cty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977)) (alterations in original). “[I]t is well established that as long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights.” Brown v. Borough v. Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). “Mere disagreements as to the proper medical treatment [does not] support a claim of an [E]ighth [A]mendment violation.” Monmouth Cty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 324 (3d Cir. 1987); see also Durmer v. O'Carroll, 991 F.2d 64, 67 (3d Cir. 1993) (explaining that deliberate indifference requires something “more than negligence”).
For purpose of this Report only, the undersigned assumes that Willis's lipomas and complaints of pain were sufficiently serious so as to qualify as a “serious medical need” and will proceed to analyze whether he has alleged facts from which a reasonable factfinder could find that Defendant Smyth was deliberately indifferent to his serious medical needs. Defendant Smyth has provided 89 pages of Willis's medical records which detail the medical treatment Willis has received (ECF 74-2), as well as Willis's grievance file in which he complains of the medical treatment or lack thereof for his lipomas (ECF No. 74-3), and the Verification of Denise Smyth, M.D. (ECF No. 74-4).
Willis's history of medical treatment at SCI-Greene from October 2018 to February 2019 pertaining to his lipomas and his pain associated with the lipomas is summarized in the following chart.
Date of Treatment
Attending Medical Personnel
Treatment Summary (page numbers reflect the paginated number on the bottom right corner of each page of ECF No. 74-2)
December 19, 2018
Sunita Jayakumar, M.D., with Melissa RN present as Chaperone with Willis's consent
Willis seen in sick call for complaints of lumps on his left arm and left chest. He reported that the lumps had been there for many years (2-3) but claimed they had now become painful. On palpation, Dr. Jayakumar confirmed there was a small mass. Dr. Jayakumar ordered x-rays of left upper arm and ultrasound. P. 118-123.
December 27, 2018
--
Ultrasound results reported by Gregory Peter, M.D. Results revealed no irregularity, no calcification, no abnormal vascular superficial masses, and “most likely” benign lipomas. P. 157
January 4, 2019
PA Sharon Colaizzi
Willis was informed that the ultrasound revealed two small lipomas. PA Colaizzi noted that upon examination the area with the lipomas was not painful upon palpation. Willis was advised to decrease his lifting weights which was putting pressure on the lipomas and increasing the pain. Willis was told to return to sick call if the lipomas increased in size and he felt a significant difference. P. 116-117.
August 13, 2020
James F. Fetterman,
Was seen for unproductive cough. Also had CRNP pain when bench pressing. P. 61-62.
A “Collegiate Review” is a review by a panel of prison physicians to determine whether an outside consult is required or if something is medically necessary. See Verification of Defendant Smyth, ECF 74-4, at ¶ 13; Progress Note of Jan. 25, 2019 by PA Sharon Colaizzi (ECF No. 74-2 at 109-10); and Initial Review Response by William Nicholson, 2/25/2019 (ECF Nos. 6-1 at 4 and 74-3 at 8).
It is not clear from the medical evidence of record if or when Defendant Smyth saw Willis after her note of January 15, 2019. However, in her Verification, she states that “[w]hen [she] saw him, the lipomas were much too small to surgically extract. I told him this and told him if they grew to come back and then maybe they could be surgically extracted.” (ECF No. 74-4 at ¶ 15).
After a careful review of the medical record of evidence, the undersigned determines that Willis cannot point to any evidence in the summary judgment record which shows deliberate indifference by Defendant Smyth. Dr. Jayakumar submitted the request for a Collegiate Review through the proper channels. Defendant Smyth presented Willis's case to the Collegiate, who denied the request for a surgical consultation due to the size of the lipomas, all of which is noted in Defendant Smyth's progress note of January 15, 2019.
In this case, there appears to be a difference of opinion as to whether pain medication and surgery is required. Willis states that the lipomas are painful, and that he wants them surgically removed and biopsied because he is afraid they are cancerous. The Collegiate Review Board concluded that surgery was not medically necessary at this time. Additionally, the medical providers at SCI-Greene have decided that pain medication is not appropriate as there was no pain reported on palpation.
Differences of opinion do not rise to the level of an Eighth Amendment violation. Estelle, 429 U.S. at 107. The question for Eighth Amendment analysis is not whether Willis is receiving the treatment he wants, but rather whether Defendant Smyth was deliberately indifferent in the medical treatment of Willis's serious medical condition. The summary judgment record is void of any evidence to suggest that the more conservative, non-surgical treatment he received is grossly incompetent or inadequate that it is shocking to the conscience. Further, Willis cannot point to any evidence which reflects that cost was a factor in any decision regarding his medical treatment.
Rather, the evidence demonstrates that Willis has been informed that the lipomas were too small to warrant surgery and that the lipomas are “most likely” benign. According to the Verification of Defendant Smyth, “ultrasound, x-rays, and laboratory testing were done which showed no evidence of cancer.” ECF No. 74-4, at ¶ 8. Willis has been instructed that the medical department is monitoring his condition and to report to the medical department if the lipomas increase in size. He has also been informed that “[i]f at a later time it becomes necessary for the lipomas to be removed, that would be done.” (ECF No. 74-3 at 11).
As stated supra, “[w]here a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law.” Green v. Wetzel, 2020 WL 4604540, at *9 (W.D. Pa. Aug. 11, 2020) (citing Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976)). Furthermore, courts “disavow any attempt to second-guess the propriety or adequacy of a particular course of treatment . . . [which] remains a question of sound professional judgment.” Inmates of Allegheny Cty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977) (alterations in original).
The record is equally void of any support for Willis's argument that Defendant Smyth failed to gain approval for the surgery due to the lack of factual basis for the request or his implication that Defendant Smyth may not have presented to the Collegiate Board at all. Resp. at 2. These arguments amount to nothing more than unsubstantiated allegations and, as such, are insufficient to defeat a properly supported motion for summary judgment. Celotex, 477 U.S. at 324. In sum, the undersigned finds that there are no facts in this summary judgment record from which a reasonable factfinder could find that Defendant Smyth was deliberately indifferent to Willis's serious medical needs.
III. Conclusion
For the foregoing reasons, it is respectfully recommended that the Motion for Summary Judgment filed by Defendant Smyth (ECF No. 73) be granted and judgment be entered in her favor.
Any party is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, because he is a non-electronically registered party, must file objections, if any, to this Report and Recommendation by November 15, 2021, and Defendant, because she is an electronically registered party, must file objections, if any, by November 12, 2021. The parties are cautioned that failure to file Objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011) (quoting Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983). See also EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).